Legal Analysis Slams Arkansas Ban on LGBTQ Protections

(CN) – An Arkansas law that prohibits local governments from passing civil rights protections for lesbian, gay, bisexual, transgender or queer people is clearly unconstitutional, a legal analysis by NYU’s College of Global Public Health found.

A February 2015 Arkansas state law, Act 137, made it illegal for “a county, municipality, or other political subdivision of the state” to adopt any ordinance “that creates a protected classification or prohibits discrimination on a basis not contained in state law.”

Local laws that extended protections to include sexual orientation and gender identity in cities like Fayetteville, the state’s third largest city, still hang in the balance. In February, the Arkansas Supreme Court ruled against Fayetteville’s voter-approved ordinance that banned discrimination on the basis of sexual orientation.

The ordinance stated: “Fayetteville is a welcoming, fair and tolerant city which endeavors to ensure that all of its citizens and visitors will be free from unfair discrimination. Since federal and state law already protect citizens from most discrimination, the Uniform Civil Rights Protection Article shall extend existing protections to lesbian, gay, bisexual, and transgender citizens and visitors as recognized elsewhere in state law.”

The case is still pending in Washington County, according to the American Civil Liberties Union of Arkansas. The state’s high court remanded the case because the justices couldn’t rule on the law’s constitutionality since it hadn’t been addressed by the lower court.

The ACLU argues that the Arkansas Legislature’s attempts to invalidate Fayetteville’s local non-discrimination ordinance violates the right to equal protection under the law.

According to an original legal analysis published in the December issue of the American Journal of Public Health, laws barring LGBTQ protections are unconstitutional.

The article by NYU’s College of Global Public Health provides information in support of evidence-based policymaking to prevent the passage of similar laws in other states.

LGBTQ individuals have historically been discriminated against in a variety of ways, the analysis found, which puts them at an increased risk for disparate health outcomes when they live in states that fail to extend equal protections to them or that actively deprive them of rights.

Jennifer L. Pomeranz, assistant professor of public health policy and management at NYU College of Global Public Health and the article’s author, said in a statement, “In the wake of the Supreme Court’s 2015 case holding that the Constitution protects the right of same-sex couples to marry, Congress and state legislatures have proposed and enacted laws to protect people who disagree with this ruling. These laws take several forms, but they all foster inequities that are concerning for public health.”

Arkansas is one of only a handful of states that prevents passage or enforcement of local LGBTQ non-discrimination laws.

“It appears that the purpose of Act 137 is to ensure that local governments cannot enact civil rights protections for LGBTQ people in Arkansas. Such state laws undermine local control, damage the economy, and create injustices that harm LGBTQ people,” Pomeranz said.

In the legal analysis, Pomeranz looked at Act 137’s legislative history and context. She found that it was passed in response to Fayetteville’s anti-discrimination law and the U.S. Supreme Court’s decisions in favor of same-sex marriage.

The analysis presents two constitutional arguments against the Arkansas law. First, it violates the U.S. Constitution’s Establishment Clause by “giving the force of law to religious business owners who wish to discriminate against same-sex couples,” Pomeranz said. The professor also said the law violates the Equal Protection Clause by classifying LGBTQ people in a discriminatory manner.

Pomeranz concluded by saying, “Even without a legal challenge to the law, which requires resources and a plaintiff with standing, these findings can be used to convince legislators in other states not to enact such a law in the first place. State legislators understand that they have a ‘fiduciary obligation to be good stewards of state resources,’ which should translate into avoiding putting the state in a position to defend its laws in court.”